On today’s podcast we present part two of an exclusive three-part conversation with Eric Siddall vice president of the ADDA the professional association for Deputy District Attorneys of Los Angeles county. You can find part one of my interview with Eric here.

Kary Antholis:

Would you talk to me a bit about the relationship between the prosecutors and police. And how you engage with them in determining whether to file charges and what charges to file in a case?

Eric Siddall:

Yeah. For the most part it’s a very good relationship. Usually it’s the detective that comes in and presents evidence they have uncovered to the DA’s who’s going to file the case. In my case because of the unit I’m in, I actually file a lot of my own cases. So they present the case file, you examine the evidence together and you make a determination with them what things need to be further investigated and that you have to make your own determination as a prosecutor about whether the case can be filed at that moment or not.

Eric Siddall:

Or if things need to be investigated in more detail before you file a case. I have friends who are police officers, but I also have friends who are defense lawyers. You respect certain people and you don’t respect all of them, but you respect their ability to do their job, whether they are defense lawyers or police officers.

Kary Antholis:

In speaking with some public defenders and some alternate public defenders, while there’s a continued desire to see reform enacted in the system, many have also recognized that the criminal legal process in Los Angeles and in California has made substantial strides in defendant’s rights over the course of the last five years or so, five to 10 years. Would you say that’s accurate and if so, what do you see is the changes that have happened that make the process fairer?

Eric Siddall:

I think what the defense is pleased about is that there have been a lot of changes in terms of what has happened in the Criminal Justice System. Probably one of the most significant changes was Prop 57 and that drastically lowered the potential exposure that most defendants had prior to Prop 57 being enacted. I’m not sure if that’s what they’re referring to, but that has definitely had a significant change in the way the Criminal Justice System is functioning.

Kary Antholis:

How did you come to take a position in the ADDA and what are the forces that shaped your approach to that job? Well, first of all, tell me what your responsibilities are there and then talk to me about how you approach that job.

Eric Siddall:

Unlike a lot of, for example, a lot of law enforcement unions, a lot of police unions. When we take a position as a board director for our union, it is basically like a part time job but it’s not compensated. It’s a volunteer position. I started getting involved with our union probably like seven years ago and it was mainly… there was a person I knew that recently had become a judge. That was also pretty active in the union again in Frank Tavelman and he got me involved, I think almost actually since day one since I joined the office I learned about the union.

Eric Siddall:

And then we became a more formalized union after like a year and a half of me being in the office and then I just became more and more involved because I wanted to be able to advocate for my fellow deputies, especially in terms of labor issues, in terms of dealing with management and dealing with compensation. And then as I got more involved with our union, we started seeing these changes within the system that we felt were very pro defendant and went against a lot of victim’s rights.

Eric Siddall:

And so I became more involved in that as well because I felt like the pendulum was swinging to a position that was hostile towards victims’ rights. And that’s why I started getting more and more involved with the union in doing outreach and doing advocacy on behalf of positions that prosecutors were in favor of.

Kary Antholis:

What were some of those changes that you felt impacted victim’s rights to the benefit of the defendants?

Eric Siddall:

Well, one of the earlier issues that happened maybe four or five years ago. This is kind of interesting. I remember talking to one of the heads of the Alternate Public Defender’s office about bail reform, and he said bail would never change in the state. And I thought, well, I think you’re wrong. There’s strong momentum for that change. And not that I thought that the system that existed back in like 2016, 2017 was a good one. But California has an issue. In that money bail is in our constitution.

Eric Siddall:

You have a right to ask for bail that doesn’t exist in the federal system. So, in the federal system, you can do a true assessment that is based purely on risk and keep someone detained just because they’re a flight risk or public taking risk or both. That’s part of the equation that we look at in California, but then we assess it and then we give it a bail number and we give it an actual figure, saying, “Oh, you are a extremely dangerous person, so bail should be $2 million for you.”

Eric Siddall:

That doesn’t make any sense to me how you’re going to be less dangerous if you post a $2 million bail, but unfortunately that’s one thing in our state constitution. The part that bothered me though was that I didn’t feel like the other side were being accurate about their numbers and they weren’t really being truthful about how bad the problem was. It would make it sound like everyone was being placed in custody. Even if it’s a low level offender, even if it’s non-violent offender or if it’s a misdemeanor offender.

Eric Siddall:

And that was not the case. And what I found bothersome was not necessarily that we were having a debate about bail reform and the need to change the bail system, but it was the way that the argument was being conducted in that the other side just was not being truthful about their numbers. And a good example is when Senate Bill 10 — which was the major bail reform bill that happened — when it first got put up, they put in their preamble, I think, that pretrial detention was at 66% in California. That’s totally inaccurate.

Eric Siddall:

66% of the people in our county jail system back in 2016, 2017 were not there for pre-trial detention. And just so you’re listeners know: that generally county jails where you’re put in, you can’t get bailed out, you get put into county jail, until your trial is over. And generally any type of offense that is not a state prison offense is also served in county jail. For example, DUIs are generally served in county jail and not in state prison.

Eric Siddall:

So if you looked at the county jail numbers, like for example in LA County, it was around 25% of the jail population were there because of pre-trial detention. In other words, they didn’t have other holds on them. They didn’t have a probation hold, they did not have a parole hold. They didn’t have multiple offenses. They were just there purely waiting for their trial. And if you looked at that population, almost all of them were there for serious or violent felonies.

Eric Siddall:

I think it was under 1% of that population was therefore a drug offense or a minor misdemeanor. The arguments that they were trying to make, was not really supported by the data. And so I think if you’re going to have the argument say, “Hey, let’s change the bail system.” That’s fine. Let’s do it and let’s do it the right way and let’s change the state constitution and let’s make it more like the federal system. But if we’re going to make it more like the federal system, then that means people who are there for violent or serious felonies should be detained and kept in detention because that’s what happens in the federal system.

Kary Antholis:

Let’s go back to some of the reform issues that have come up, particularly in the course of the district attorney primary election. I think perhaps one of the most contentious issues during the course of that race was the issue of diversion and the district attorney’s office approach to diverting people in various ways, whether it’s through rehab and recovery or it’s through programs aimed at early offenders or first time or second time offenders. I’d love your perspective on the way that that debate went down. The points made on both sides and your assessment of District Attorney Lacey’s approach to diversion during the course of her period as DA.

Eric Siddall:

She’s been a huge leader in terms of any type of diversion program in terms of mental health and she created a program — I think Gascón tried to create a program in San Francisco… I’m not sure it went anywhere — but DA Lacey has been a real leader in terms of creating those types of diversion programs within Los Angeles, in terms of mental health issues. None of my defendants are in that arena because they’re generally committing murder and they’re usually committing it for their gang. So my experience in terms of diversion is very limited.

Kary Antholis:

Let’s talk a bit about gang enhancements and CalGang and the issues of implicit bias and the problems that the Los Angeles police department that was inaccurately entering information into the CalGang database.

Eric Siddall:

You were talking about the LAPD officers who are accused of lying about classifying someone as a gang member when they’re not a gang member.

Kary Antholis:

Yes, I’m talking about that as one of the more allegedly egregious examples of it, but there’s also assessments of the value of the gang database. And its subjectivity and the experience that a number of people have reported of ending up in that database on those lists without any real due process rights. And I’d love your assessment and response to that.

Eric Siddall:

So I think we have to remember what the list is and what’s the purpose of the list before we can really talk about all the other issues. So most people have never heard of CalGangs, have no familiarity with CalGangs and in fact almost no one has actually seen CalGangs because CalGang is something maintained by police officers specifically within the gang unit. So they can track gang numbers. It’s not like a no fly list. So it doesn’t actually affect your due process rights.

Eric Siddall:

If you get pulled over by an officer, they can’t go in and look in CalGangs and see if you’re on the list of gang members. So first let’s just understand what it is. It’s a tool that is used similar to when we used to go to the library. There was a card catalog. You would look for your book in the card catalog and then you were able to go find the book. That’s really all it is. It’s nothing more than just a way for law enforcement and specifically gang officers to be able to track who is a gang member and who’s not a gang member.

Eric Siddall:

It’s also used for investigative tools like for example, someone gives a description, says so-and-so claimed this gang and they had a big R on the left hand side of their face. Well you can go into CalGangs and narrow down the search and find out gang members with an R on their face. But that’s really all it was used for. It’s not something we admit into evidence in court. It is not something that is admitted into evidence to prove that someone is a gang member in court.

Eric Siddall:

So there’s no real due process issues that are involved with the use of CalGangs. The other thing that is important to understand, in terms of when you’re putting up the gang allegation in court, you need the actual officer to come into court who got that admission that the person is a gang member. So again, CalGangs is not used in court as substantive evidence. It is really just a way for law enforcement to be able to track who is who and who has what and where someone has been stopped at, purely for investigative purposes.

Eric Siddall:

No due process rights are infringed upon by the presence of CalGangs. The other thing that is important to note is that the California Department of Justice put up certain criteria that have to be met before a name is entered into CalGangs and people were advised when they are placed in the CalGangs, which is actually how that LAPD officer was caught, was because they were advising the people who were put into CalGangs, and I think there was a mother of one of them who went in and made a complaint that her son or daughter was not a gang member. And so if anything, this latest scandal is showing that the system and the safety measures within the system are actually working and the right people are being put in. And if the wrong person gets put in, there’s a mechanism to deal with that.

Kary Antholis:

Doesn’t a person have to go to court to get removed and doesn’t that entail hiring a lawyer, substantial cost and effort for people who are often poor? And then a few follow on questions to that, what are the internal checks on that system that are meant to prevent such abuse? Also, when you earlier said that there is no due process infringement, doesn’t someone’s presence in that database impact plea negotiations? In other words, if someone is in the database, won’t they be charged with crimes involving gang enhancements causing the plea offers to increase dramatically and isn’t that an implicit infringement of due process rights?

Eric Siddall:

No, you don’t have to get a lawyer to go in and remove yourself from the database. In fact, I think what happened in this case was that it was a mother of someone that was put in, made a complaint to LAPD. They reviewed it. LAPD internally removed all those people’s names from the database. From the news reports I’ve read, LAPD eventually removed everyone’s name. Every name collected by those officers were removed from the database. The second thing in terms of the database increasing your sentencing, the database doesn’t really increase your sentencing. The database just points you to evidence that you may use and then you have to independently evaluate whether that evidence means anything. All the database is it’s a form of intelligence gathering the names, being able to determine who is a part of a criminal street gang, what characteristics they have, where they’ve been stopped, any type of moniker, any type of tattoos.

Eric Siddall:

That information then is used by the gang detective to be able to say, “Hey, this guy is a gang member.” Again, all that evidence would be subject to cross examination and we don’t just charge people with gang allegations just because they’re gang members. There has to be some type of activity that is gang related before the gang allegation can be used. For example, if it’s a robbery, they have to do something that shows that the robbery is in furtherance of the gang in order for the gang allegation to be charged against that particular individual. So no; the database in itself doesn’t do anything to persons due process rights. It just leads to evidence that can then maybe be used in the future that would cause certain charges to be made or not made.

Kary Antholis:

If you’re contemplating bringing charges against someone and you, as a prosecutor, you have access to the gang database to see if that person’s in that and to see if there’s any evidence in that database that points to their involvement in a gang that might lead you to charge a crime with gang enhancements. Is that how it works or am I misunderstanding?

Eric Siddall:

No. First, as prosecutors, we don’t have access to the gang database. It’s really the gang detectives and gang officers. In fact, if you’re a normal line officer, you generally don’t have access to that database either. So all the database is is a collection of information about particular stops that were made or particular encounters that were made. So if I’m prosecuting the gang allegation, I would ask my investigating officer, “Can you get me information as to this person’s gang membership?” They would go onto something like CalGangs. They would collect field identification cards. We would get those cards. We would examine them and possibly use those encounters as evidence, but we would have to subpoena in the officers who engaged in those encounters. Oftentimes, those encounters will be on body cam and you’ll have to prove it like you would any other fact. All the database is is a way to be able to point to certain evidence that is out there and exists independently of the database.

Kary Antholis:

Let’s talk about the length of sentences that are sought in criminal cases. Now you’re working on murders primarily or serious gang offenses and in approaching my work at Crime Story and our reporting, I’ve read a lot of reports about non-murder offenses that would otherwise be categorized as violent offenses, which include felonies committed with a weapon like carjackings. Those cases in the United States tend to have sentences that go on average well beyond what other developed nations have as their sentencing habits.

Kary Antholis:

And anecdotally, one of the cases that this brings to mind is we were observing the hearings in the Robert Durst trial and prior to a hearing one day, there was a young man brought in, I think he was now 21 and he was involved in a car jacking when he was 19 years old. It was his second offense. The other offense occurred within a span of six months. And since his arrest, he had been a model prisoner and the judge who was the same judge that is presiding over the Durst case did everything he could, there was not a lot he could do because of the nature of the sentencing laws and the strictures around those.

Kary Antholis:

And in his statement, the judge said that there are a lot of studies about the development of the brains of young people who are perhaps more violent when they’re in their late teens and twenties than they are as they get older. And some of these sentences might be revisited. This guy received a sentence of 15 years and had to serve at least 80% of it, I think. It’s a long winded way of asking you your perspective on sentencing in that context.

Eric Siddall:

Well, so I think there’s two different issues. First there is the issue about the male brain. California right now already has a law in terms of sentencing that takes into consideration the science behind what you’re talking about. In terms of the male brain is not fully developed until one is about 25 years old. So there’s already a law in terms of sentencing that takes that into consideration and makes it so that people who are 25 or younger can get paroled at an earlier date.

Eric Siddall:

So I’m not sure what more we can do. The other issue I think that is important when we’re talking about this is there’s also other studies that show that most people commit violent crime when they’re in their 20s and their 30s and then probably at the age of 35 or so, it drops off dramatically. I think that there has been a push to take that into consideration. I think that has. That’s now the laws of the land, at least in California. Even if you commit a murder, by the way, you can still get released early because of your age. So I don’t know. I think that has already been taken into consideration and we’ve given the parole board a lot more power to be able to release people who committed crimes when they were younger.

END OF PART TWO


Read Part Three of my interview with Eric here.